Miller v. Canada, 2001 SCC 12, [2001] 1 SCR 407

Miller v. Canada, [2001] 1 S.C.R. 407, 2001 SCC 12

Her Majesty The Queen in Right of Canada                                   Appellant

v.

Bernard Miller             Respondent

Indexed as:  Miller v. Canada

Neutral citation:  2001 SCC 12.

File No.:  27295.

Hearing and judgment:  November 1, 2000.

Reasons delivered:  March 1, 2001.

Present:  McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.

on appeal from the court of appeal for quebec

Civil procedure – Declinatory exceptions – Lack of jurisdiction by reason of subject matter – Crown leasing premises used by international organization for its head office – Former employee of organization bringing action against Crown seeking damages for health problems allegedly suffered because of inadequate air quality in building – Crown bringing motion to dismiss for lack of jurisdiction – Whether Superior Court has jurisdiction to hear claim – Code of Civil Procedure, R.S.Q., c. C-25, arts. 31, 164.

Courts – Jurisdiction – Civil claim for damages – International organizations – Immunity – Crown leasing premises used by international organization for its head office – Former employee of organization bringing action against Crown seeking damages for health problems allegedly suffered because of inadequate air quality in building – Whether Superior Court has jurisdiction to hear claim – Code of Civil Procedure, R.S.Q., c. C-25, art. 31.

The respondent M was employed as an interpreter by the International Civil Aviation Organization (“ICAO”).  Pursuant to the Headquarters and Supplementary Agreements between Canada and ICAO, the appellant Crown was responsible for leasing the premises to be used by ICAO for its head office in Montreal.  The Crown leased part of a building owned by Monit International Inc. for this purpose.  M alleges that he suffered health problems at all times he regularly worked in the building because of inadequate air quality.  He claims that the Crown was aware of the air quality problems for at least two years but failed to warn him and other employees of the danger to their health.  M brought an action against the Crown and Monit seeking damages.  At trial, the Crown brought a motion to dismiss for lack of jurisdiction pursuant to art. 164 of the Code of Civil Procedure.  The Superior Court dismissed the motion, and that decision was upheld by a majority of the Court of Appeal.

Held:  The appeal should be dismissed.  The Superior Court is competent to hear the claim.

There is no basis for the claim that, because of M’s status as a civil servant of an international organization, the immunity referred to in art. 33(b) of the Headquarters Agreement applies and affects his ability to bring an action against the Crown.  M’s status as an international civil servant is irrelevant since he is not bringing an action in that capacity.  In addition, despite the Crown’s argument that M’s alleged injuries occurred in relation to his employment, he has presented evidence that his injuries may have been incurred, in part, upon returning to the ICAO headquarters after he was dismissed.  In any event, immunity pursuant to art. 33(b) only transfers to an employee of ICAO when the employee is a defendant in a court action and not when he or she is a plaintiff.

The mere fact that M’s damages were stated to have arisen from working conditions and were stated to be “entirely work-related” cannot change the true nature of the claim into one of labour relations.  This case does not involve a dispute between an employer and an employee, but rather is premised on a claim by a former employee against third parties who have nothing to do with the employment relationship.  The Crown’s failure to warn of dangerous environmental conditions within the ICAO headquarters, if proven, cannot be seen as a “sovereign act” as it clearly has nothing to do with the agreement between ICAO and the Crown, nor with ICAO’s daily activities.

The concerns raised by the Crown regarding the effect of ICAO’s immunity on the preparation of its defence are both hypothetical and premature.  Any real issue on this subject could be handled by the trial judge.  Although ICAO immunity covers the premises with an “inviolable” character, pursuant to arts. 4 and 5 of the Headquarters Agreement, the facts of this case indicate that this immunity is not so broad as to completely preclude the Crown from gathering evidence to support its arguments on the merits of the case.  There is evidence that the Crown entered the ICAO premises on numerous occasions owing to the continuing air quality problems.  This evidence also suggests that the Crown supplied full-time staff to assist and advise Monit, the owner of the building, and that the Crown participated in committee meetings.  Finally, it suggests that ICAO was not the only tenant of the building, which was open to the public.  In addition, art. VII of the Supplementary Agreement states that any cause of action related to the lease can be brought to a competent court of Canada and, in such a case, ICAO should “facilitate the proper administration of justice and assist the Government of Canada by providing all relevant evidence”.  Although M’s claim is not based on the lease but rather on the Crown’s failure to warn of environmental problems, the Crown could point to the fact that its involvement in this case is “related” to the lease to obtain ICAO’s cooperation.

There is nothing in the international instruments to preclude M’s action from being heard and considered by the Superior Court.  The international order as stated in these instruments only relates to actions in which ICAO is a party.  Under art. 31 of the Code of Civil Procedure, the Superior Court is the court of first instance for all suits that are not assigned exclusively to another court by a specific provision of law.  The international documents that must be considered include the Headquarters Agreement, the Supplementary Agreement, the ICAO Staff Rules, and the ICAO Service Code.  Whether or not all of these documents form part of Canadian law is, in this case, irrelevant since there is nothing in any of these documents to specifically exclude an employee of ICAO from bringing an action against the Canadian government in Canadian courts.

Cases Cited

Distinguished:  New Brunswick v. O’Leary, [1995] 2 S.C.R. 967; Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; Béliveau St-Jacques v. Fédération des employées et employés de services publics inc., [1996] 2 S.C.R. 345; Re Canada Labour Code, [1992] 2 S.C.R. 50; referred to:  Miller v. Monit International Inc., [2001] 1 S.C.R. 432,  2001 SCC 13.

Statutes and Regulations Cited

Code of Civil Procedure, R.S.Q., c. C-25, arts. 31, 164, 481.1(c) [ad. 1996, c. 5, s. 40].

Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, s. 3 .

Headquarters Agreement between the Government of Canada and the International Civil Aviation Organization, Can. T.S. 1992 No. 7, arts. 4, 5, 21, 32, 33.

Supplementary Agreement between Canada and the International Civil Aviation Organization, Can. T.S. 1980 No. 18, arts. II, VI, VII.

Vienna Convention on Diplomatic Relations, Can. T.S. 1966 No. 29.

APPEAL from a judgment of the Quebec Court of Appeal, [1999] R.J.Q. 719, [1999] Q.J. No. 754 (QL), dismissing the appellant’s appeal from a judgment of the Superior Court, [1998] R.J.Q. 260, [1997] Q.J. No. 4022 (QL), dismissing the appellant’s declinatory exception.  Appeal dismissed.

Marie Nichols, Q.C., and Claude Joyal, for the appellant.

Leonard E. Seidman and Sabrina Seal, for the respondent.

The judgment of the Court was delivered by                      

1                                   Bastarache J. — This appeal raises the issue of whether the Court of Appeal was correct to find that the Superior Court of Quebec has jurisdiction over a civil claim commenced against the Crown by a former employee of an international organization located in Quebec for damages suffered at his place of employment.

2                                   This case was heard on November 1, 2000 in conjunction with Miller v. Monit International Inc., [2001] 1 S.C.R. 432, 2001 SCC 13, released concurrently, which raises a similar issue.  This appeal was dismissed from the bench with reasons to follow.

I.  Factual Background

3                                   The respondent Bernard Miller is a British citizen who, between January 2, 1990 and May 7, 1994, was employed as an interpreter by the International Civil Aviation Organization (“ICAO”), which is a specialized agency of the United Nations.

4                                   Pursuant to the Headquarters Agreement between the Government of Canada and the International Civil Aviation Organization, Can. T.S. 1992 No. 7, and the Supplementary Agreement between Canada and the International Civil Aviation Organization, Can. T.S. 1980 No. 18, the head office of ICAO was located in Montreal, and the appellant Her Majesty the Queen in Right of Canada (“the Crown”) was responsible for leasing the premises to be used by ICAO.  The Crown leased part of 1000 Sherbrooke Street West in Montreal for these purposes from the owner, Monit International Inc., an appellant in parallel proceedings.  This building was the place of employment of the respondent.

5                                   Miller alleges that he suffered health problems at all times he regularly worked in the building because of inadequate air quality.  His medical documents state that these problems were due to his exposure to toxic substances in the air.  As a result, he informed ICAO in January 1994 that he was unable to continue to work in these conditions.  In May 1994, his employment was terminated as a result of unspecified health problems.  He returned to the building for a two-day appeal after his termination which, his doctors state, aggravated his condition.

6                                   Miller has been exercising his contractual rights within the administrative framework of the ICAO Service Code for six years in order to receive disability benefits and compensation from his employer.  At the date of the oral hearing in this case, no decision had yet been made with regard to the internal claim.

7                                   Miller alleges that the Crown was aware of the air quality problems for at least two years but failed to warn him and other employees of the danger to their health.  Both the Crown and Monit tried to fix problems with the air quality in the building but were unsuccessful.  Miller alleges that Public Works Canada was responsible for overseeing the physical plant and supervised improvements to the ventilation system in 1988 and 1989.  Further, at ICAO’s request, the Crown provided a full-time on-site specialist to supervise and maintain the ventilation system.  Miller also alleges that Public Works Canada was aware of staff sensitivities.  According to Miller, numerous air quality studies were completed and unsafe levels of highly toxic chemical volatile organic compounds were found; yet, although the respondent had regular contact with Public Works Canada personnel, he states that he was not informed of these findings.

8                                   A Joint Working Group was formed in July 1990 to consider the air quality concerns.  The Committee consisted of representatives of the Crown, Monit, ICAO and ICAO employees.

9                                   Miller claims he is unable to work due to his present medical condition.  He has brought an action against the Crown and Monit seeking damages in the amount of $2,164,585.46 jointly and severally, as well as $100,000 in punitive damages against the Crown.  The claim against the Crown is based on its alleged knowledge of the poor air quality and its failure to warn the employees of ICAO of the resultant danger to their health.  At trial, the Crown brought a motion to dismiss for lack of jurisdiction pursuant to art. 164 of the Quebec Code of Civil Procedure, R.S.Q., c. C-25.  The Quebec Superior Court denied the motion.  This decision was appealed to the Quebec Court of Appeal and the appeal was heard in conjunction with Miller v. Monit International Inc.  The appeal was dismissed, Mailhot J.A. dissenting.

10                               The Crown alleges that the respondent’s claim falls entirely within working conditions and thereby exclusively within the area of labour relations.  It argues that this subject matter is totally governed by the ICAO Service Code and, pursuant to the international agreements between ICAO and the Canadian government, the administrative regime in the Service Code must be followed.  As such, the Superior Court does not have jurisdiction to hear this claim.

11                               Miller argues, and the Superior Court and Court of Appeal agreed, that the claim is not based on the employment relationship, but rather, on the alleged extra-contractual delictual acts of the Crown.  Therefore, the international immunity from which ICAO benefits cannot be afforded to the Crown and, since this dispute is not between the respondent and his employer, nor between the Crown and ICAO, the Superior Court is competent to hear the case on its merits.

II.  Statutory Framework

12                               Code of Civil Procedure, R.S.Q., c. C-25

31.  The Superior Court is the court of original general jurisdiction; it hears in first instance every suit not assigned exclusively to another court by a specific provision of law.

Headquarters Agreement between the Government of Canada and the International Civil Aviation Organization

                                                               Article 4

                                                    Inviolability of premises

(1)  The headquarters premises of the Organization shall be inviolable.

                                                                   . . .

(3)  The property and assets of the Organization, wherever located and by whomsoever held, shall be immune from search, requisition, confiscation, expropriation and any other form of interference, whether by executive, administrative, judicial, or legislative action, except with the consent of and under the conditions agreed to by the Secretary General of the Organization.  This section shall not prevent the reasonable application of fire protection regulations.

                                                              Article 21

                                          Purpose of privileges and immunities

(1)  Privileges and immunities under Articles 19 and 20 are accorded to officials in the interests of the Organization and not for the personal benefit of the individuals themselves.  The Secretary General of the Organization shall have the right and the duty to waive the immunity of any official in any case where, in his opinion, the immunity would impede the course of justice and can be waived without prejudice to the interests of the Organization.  In the case of the President of the Council and the Secretary General of the Organization, the Council of the Organization shall have the right to waive the immunity.

(2) Without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of Canada.  They also have a duty not to interfere in the internal affairs of Canada.

                                                              Article 33

                                                          Other Disputes

The Organization shall make adequate provision for appropriate modes of settlement of:

(a)       disputes arising out of contracts or other disputes to which the Organization is a party;

(b)       disputes involving any officials of the Organization if their immunity has not been waived in accordance with Article 21.

Supplementary Agreement between Canada and the International Civil Aviation Organization

                                                           Article II

                                               Obligations under the Lease

1.  Taking into consideration that the said premises are rented solely and exclusively for the needs of the Organization’s Headquarters, the Government of Canada shall, as the Lessee, assure that the Lessor complies with its obligations as specified in the lease or as they may be prescribed in the Civil Code of the Province of Quebec or under any other law.

                                                                   . . .

3.  Notwithstanding any references in this Supplementary Agreement to the Lease between the Government of Canada and the owner of the premises, the mutual rights and obligations of the Government of Canada and the Organization with respect to the Headquarters premises shall be governed by this Supplementary Agreement.

                                                           Article VI

                                                   Settlement of Disputes

Any dispute between the Organization and the Government of Canada concerning the interpretation or application of this Supplementary Agreement shall be settled in accordance with Article VII, Section 31, of the Headquarters Agreement.

                                                          Article VII

                                                          Court actions

1.  Without prejudice to the privileges and immunities of the Organization as defined in the Headquarters Agreement, the Government of Canada reserves its right to refer any cause of action related to the Lease to the competent courts of Canada.

2.  The Organization shall, in such circumstances, facilitate the proper administration of justice and assist the Government of Canada by providing all relevant evidence.

Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50 

3.  The Crown is liable in tort for the damages for which, if it were a private person of full age and capacity, it would be liable

(a)  in respect of a tort committed by a servant of the Crown; or

(b)  in respect of a breach of duty attaching to the ownership, occupation, possession or control of property.

III.  Judicial History

A.  Quebec Superior Court, [1998] R.J.Q. 260

13                               Benoît J. held that the Superior Court has jurisdiction to hear the respondent’s claims.  He reviewed the contractual relationships between the parties and held that there was no contractual link between the Crown and Miller, nor any contractual obligations owed by the Crown to Miller.

14                               According to Benoît J., any litigation between the Crown and ICAO, or between Miller and ICAO, is outside the jurisdiction of the Superior Court because of the Organization’s immunity from all legal suits and the available recourse to an international administrative body.  Further, any litigation between Miller and his employer would be governed by the ICAO Service Code provisions.

15                               Benoît J. also found that art. 32 of the Headquarters Agreement only applies to the parties to the Agreement and that art. 33(b) only involves claims against an ICAO employee where immunity has not been lifted.  As such, neither is applicable in the present case.

16                               The Crown argued that the act of signing the lease was an international obligation falling within jure imperii; therefore, the Canadian courts have no jurisdiction over matters related to the lease.  Benoît J. held that, although the act of signing the agreements is a jure imperii act of Canada, Miller’s claim is not based on the lease nor on the agreements, but, instead, on the Crown’s failure to warn of the health risks posed by the building in which Miller worked.

17                               The Crown also alleged that the only recourse available for unsafe working conditions is before the international administrative tribunals.  Benoît J. held that the obligation to provide a healthy working environment only falls within “working conditions” if it is within the control of the employer.  The Crown further argued that the reference to injuries being “work-related” in the respondent’s declaration was determinative and showed that Miller’s claim is entirely within the scope of labour relations.  Benoît J. noted that Miller had alleged that the Crown was invited into the premises by ICAO, was aware of toxic substances in the air and did not warn him of the resultant danger to his health; he held that the legal issues are therefore those of establishing causation and damages, which have to be determined on the merits.  Benoît J. stated that, whether the person to be warned was an international employee or not, the obligation remains the same and the Superior Court is competent to hear the claim.

18                               Finally, Benoît J. found that since Miller was not claiming employee benefits, there was no possibility of contradictory judgments or double indemnity; the forum non conveniens rule was therefore not applicable.

B.  Quebec Court of Appeal, [1999] R.J.Q. 719

Nuss J.A.

19                               The majority of the Court of Appeal dismissed the appeal, thereby confirming that the Quebec Superior Court has jurisdiction to consider the respondent’s claim.  The Crown’s position was that because Miller was an employee, anything to do with employee/employer relations was covered by the immunities and privileges of international organizations.  Nuss J.A. held that the Superior Court was correct in emphasizing that Miller’s claim is not against ICAO and holding that the Crown could not clothe itself in the privileges and immunities vested in international organizations.

20                               The Crown argued that all obligations of the Canadian government, if any, flowed from the agreements; Nuss J.A. held that Miller was not a party to these agreements and not bound by them.  As such, the relationship of the Crown to ICAO was not relevant.

21                               Nuss J.A. held that if the Crown harmed a person, saving a case where domestic law had given the Crown immunity, it could be sued in Canadian courts.  There is no principle of law which states that because the Crown is involved with an international organization, it is not subject to a suit filed in Canadian courts.

22                               The Crown argued that because Miller was covered by the ICAO Service Code, his recourse must follow the rules in the Code, which do not authorize suits against the Crown.  Nuss J.A. held that these rules apply to cases involving Miller and ICAO, and here, Miller is not bringing an action against ICAO.  Further, if the alleged acts did occur during his employment with ICAO, immunity from suit that vests in ICAO is not transferred to the Crown.

Mailhot J.A. (dissenting)

23                               Mailhot J.A. agreed with almost all aspects of the Crown’s claim and would have allowed the appeal.  She held that the respondent’s declaration clearly shows that actions occurring during his employment are the basis of the claim and that the building leased by the Government of Canada has territorial immunity due to the Headquarters Agreement.  These claims are tied to the working conditions and the respondent’s health problems which manifested themselves as soon as he started working in his office on the 13th floor and in the interpretation booths.

24                               Mailhot J.A. held that if there is any obligation on the Crown, its source is in the international agreements between ICAO and Canada.  The Crown was obligated to sign a lease for the headquarters and the Superior Court cannot apply or interpret it because the signature on this lease was an act jure imperii.

25                               Mailhot J.A. held that there was nothing in the agreements permitting an employee to sue the Canadian government for working conditions inside the building, but that they include dispute resolution provisions for work-related matters.  Article 33 of the Headquarters Agreement refers to “Other Disputes” and applies in this case.

26                               Mailhot J.A. remarked that Miller entered work each day, not at the invitation of the Crown, but rather as an employee of ICAO.  If there is any recourse, it is against the employer.  Miller had no tie to the Crown.  Because of the internal dispute resolution mechanisms in the ICAO Service Code, she viewed the damages requested by the respondent, which include medical reimbursement and employment retraining, as employee benefits.  She also concluded that the ICAO immunity and internal mechanisms provided that the respondent cannot sue ICAO in court.  In her view, the respondent’s present action is an attempt to do indirectly what he cannot do directly.

27                               Mailhot J.A. found that there was a risk of double indemnity or contradictory judgments and a risk of interfering in the internal affairs of ICAO.  The application and interpretation of international agreements is not for ordinary courts; they should not interfere in the adjudicative choice made by the parties.

IV.  Issues

28                               There is only one issue that must be addressed for the determination of this appeal:  Did the Court of Appeal err in determining that the Quebec Superior Court has jurisdiction to hear the claim of Mr. Miller against the Crown?  For the appellant to succeed, it must show, pursuant to art. 31 of the Code of Civil Procedure, that the respondent’s case is assigned exclusively to a court other than the Superior Court by a specific provision of law.

V.  Analysis

29                               The Crown bases its appeal on two fundamental arguments.  The first of these arguments is that, because of the respondent’s status as a civil servant of an international organization, the immunity referred to in art. 33(b) of the Headquarters Agreement applies and affects his ability to bring an action against the Crown.  The second argument focuses on the context in which the alleged damages occurred; in particular, the Crown alleges that the respondent was present in the building due to his employment and that, but for his employment with ICAO, the alleged damages would not have occurred.  The respondent’s claim therefore falls within labour relations which are governed by the ICAO Service Code.  In addition, the Crown indirectly argues that the immunity of ICAO extends to the location of the work of ICAO and its employees.

A.  The Effect of Miller’s Status as a Civil Servant of an International Organization

30                               There is no basis for the appellant’s claim that Miller’s status as a civil servant of an international organization should impinge on his ability to bring an action against the Crown.  The respondent’s status as an international civil servant is irrelevant since, in this case, he is not bringing an action in that capacity.  In addition, despite the argument of the appellant that Miller’s alleged injuries occurred in relation to his employment, he has presented evidence that his injuries may have been incurred, in part, upon returning to the ICAO headquarters after he was dismissed.

31                               In any event, immunity pursuant to art. 33(b) only transfers to an employee of ICAO when the employee is a defendant in a court action and not when he or she is a plaintiff.  Article 33 is entitled “Other Disputes”; (a) concerns the settlement of disputes “arising out of contracts or other disputes to which the Organization is a party”, and (b) concerns the settlement of disputes “involving any officials of the Organization if their immunity has not been waived in accordance with Article 21” (emphasis added).  It is clear that neither of these subsections is applicable in the instant case.  First, because ICAO is not a party to the dispute, subsection (a) may not be invoked.  Second, subsection (b) was not worded in the same manner in that there is no reference to disputes wherein the official is a “party”; rather, the wording relates to disputes wherein immunity of the official has not been waived.  Thus, I am in agreement with Benoît J. when he stated, at pp. 271-72:

[translation]  It should be noted that art. 32 applies only to the parties to the Headquarters Agreement and that art. 33(b) concerns claims against an official where immunity has not been waived, which means, of necessity, a defendant in an action involving either ICAO activities or the duties of the official, since that is the extent of the immunity.

Pursuant to art. 33(b), the immunity comes into play only if the officer is being blamed for a wrongful act.  This interpretation is also consistent with the international agreements and conventions upon which art. 33 is based.

B.         The Legal Consequences of the Alleged Injuries Having Been Incurred in the International Workplace

32                               The Crown argues that this Court must consider the context in which this claim arose.  In its opinion, the respondent’s injuries would not have occurred but for the respondent’s employment; therefore, these injuries are necessarily related to employment and fall within the area of labour relations.  As a result, the Crown maintains that the respondent’s action should be governed by the ICAO Service Code which provides a complete internal regime for regulating conditions of employment within that Organization.  The Crown finds support for this position in the respondent’s declaration wherein he stated that his claim arises “from the working conditions and environment” and that his medical condition is “entirely work-related”.

33                               In response, Miller states that his claim is not based on working conditions as they relate to labour relations, but simply on the failure of a third party to warn of dangerous conditions of which it had knowledge.  As such, the claim is an ordinary action in civil responsibility.  Miller further states that his reference to the work-related nature of his injuries was only included in the declaration to avail himself of the “simplified procedure” in art. 481.1(c) of the Code of Civil Procedure, which applies to claims “related to a contract of employment”.

(a)   The Impact of Reference to Work-Related Injuries in the Respondent’s Declaration

34                               Benoît J., in an interlocutory decision dated October 30, 1997, did not allow this case to follow the “simplified procedure” despite the inclusion of the aforementioned statements in Miller’s declaration.  He held that the alleged damages suffered by Miller did not arise from the employment contract or the lease, but rather from the exposure of everyone in the building, whether an employee of ICAO or not, to toxic substances.  Therefore, the claim of the respondent was not “related to a contract of employment” and the “simplified status” was denied.  This was a final decision that was not appealed.  It was released over two weeks before the decision from which this appeal is made and, as a result, the remainder of the respondent’s claim has followed the ordinary procedures in the Code of Civil Procedure.

35                               The mere fact that the respondent’s damages were stated to have arisen from working conditions and were stated to be “entirely work-related” cannot change the true nature of the claim into one of labour relations.  These statements simply reveal that the majority of the respondent’s alleged injuries occurred while the respondent was at work, which is not disputed.  The mere fact that damages occur while an employee is at work does not automatically imply that the employer is the responsible party.  The respondent in effect claims that the Crown is one of two third parties responsible for his alleged injuries which, he alleged, occurred, for the most part, while he was employed by ICAO, at the ICAO building.

(b)  The Focus of the Inquiry

(i)  The Nature of the Dispute

36                               The Crown argues that this Court should focus on the activities involved rather than on the actual parties to the action.  In doing so, if it is found that the activities fall within “working conditions”, the claim is within labour relations between ICAO and the respondent.  In essence, the appellant says that, even though ICAO is not a party to the action, this claim involves the actions of ICAO, which are protected by ICAO immunity and must be determined by the international dispute resolution mechanism.  The Crown relies upon several cases which, it argues, support this argument, in particular New Brunswick v. O’Leary, [1995] 2 S.C.R. 967, Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, and Béliveau St-Jacques v. Fédération des employées et employés de services publics inc., [1996] 2 S.C.R. 345.

37                               In O’Leary, this Court held that a claim brought by an employer against an employee was governed by labour legislation providing for binding arbitration in cases involving a dispute regarding the “interpretation, application or administration” of the collective agreement.  Although the employer argued that his action was based on negligence rather than on the collective agreement, McLachlin J., as she then was, decided otherwise.  Based on an investigation into the “essential character” of the dispute, she held that it arose from the collective agreement.  She stated, at para. 6:

Here the agreement does not expressly refer to employee negligence in the course of work.  However, such negligence impliedly falls under the collective agreement.  Again, it must be underscored that it is the essential character of the difference between the parties, not the legal framework in which the dispute is cast, which will be determinative of the appropriate forum for settlement of the issue.  [First emphasis in original; second emphasis added.]

38                               Similarly, in Weber, McLachlin J., writing for the majority, reiterated, at para. 52, that “[t]he question in each case is whether the dispute, in its essential character, arises from the interpretation, application, administration or violation of the collective agreement”.  In that case, the majority upheld decisions by the lower courts striking an action brought by an employee against his employer based on tort law.  While the Ontario Court of Appeal overturned the trial judge in part, allowing an action based on a breach of the employee’s Charter rights to stand, this Court disagreed, arguing the power and duty of arbitrators to apply the law extends to the Charter.  Yet, while McLachlin J. held that disputes arising from a collective agreement fall within the exclusive jurisdiction of an arbitrator if the applicable legislation so provides, thereby precluding the possibility of suit before the courts, she recognized that certain cases will remain in which the courts retain jurisdiction to deal with disputes between employers and employees.  In this regard, she stated, at para. 54:

This approach does not preclude all actions in the courts between employer and employee.  Only disputes which expressly or inferentially arise out of the collective agreement are foreclosed to the courts. . . .

39                               Finally, in Béliveau St-Jacques, this Court ruled upon a liability claim lodged by an employee which was based on the Quebec Charter of Human Rights and Freedoms.  The majority decision delivered by Gonthier J. held that the employee had obtained compensation for her damages, which had already been characterized as an “employment injury” within the meaning of the relevant provincial legislation.  This statute prohibited any further action before the Superior Court.  Although this resulted in the employer’s civil immunity, Gonthier J. held that such a result did not deprive the employee of her fundamental rights protected by the Quebec Charter, nor did it prevent her from seeking redress and obtaining monetary compensation for her injuries.

40                               The Crown stresses that the “essential character” of this action is a labour relations dispute and an attempt to seek redress for the respondent’s termination by ICAO; thus, it should be subject to the rules established by the ICAO Service Code.  The appellant’s arguments on this point are flawed in two respects.  First, they appear to misstate the importance of the case law that is reviewed above.  These judgments clearly indicate that where a dispute between an employer and an employee arises out of a collective agreement, which is governed by legislation that establishes alternative procedures for dispute resolution, the claimant is barred from seeking a civil remedy before the Superior Court.  As such, this jurisprudence would be instructive for assessing the respondent’s capacity to file suit against his employer, ICAO, before the Superior Court; however, the respondent’s claim is evidently distinct from those at issue in O’Leary, supra, Weber, supra, and Béliveau St-Jacques, supra.  Unlike those appeals, the case at bar does not involve a dispute between an employer and an employee, but rather is premised on a claim by a former employee against third parties who have nothing to do with the employment relationship.  As such, although this body of case law is helpful insofar is it establishes that the “essence” of a claim must be considered to determine questions of jurisdiction, it does not support the position of the Crown in light of the nature and distinct factual circumstances of the present appeal, which do not arise from an employment relationship.

41                               Second, notwithstanding the fact that ICAO is not a party to this action, the Crown insists that the respondent is trying to do indirectly what he cannot do directly, that being that he is attempting to bring an action in court for the loss of his employment contract.  The Crown submits that:

[translation]  What Mr. Miller is attempting to do by bringing an action against the Government of Canada in the Superior Court is to bypass the legal procedures that have been put in place to assess his claim and to bypass the immunity enjoyed by ICAO in Canadian courts by substituting the Government of Canada for ICAO;

42                               The majority of the Court of Appeal was correct in its analysis of this argument.  The respondent has not made a claim against ICAO in the Superior Court.  If he had, it is clear from the Headquarters Agreement, the ICAO Staff Rules and the ICAO Service Code as well as the preceding jurisprudence that the respondent’s action would have been disallowed.  ICAO is immune from court action because of the international agreements signed by ICAO and Canada; any claim against ICAO would have to follow the administrative procedures laid out in the Service Code and Rules.  In fact, Miller has made a claim against ICAO following these administrative procedures.  He has waited six years and, at the date of this hearing, had not received a decision.  The present action, on the other hand, is against third parties who he claims are responsible for his medical problems.

43                               The respondent is not attempting to gain employee benefits in this action but, rather, compensation for the alleged wrongful acts of the Crown which are not based on the breach of an employment contract but rather, are extra-contractual.  As stated by Benoît J., the claim against the Crown is not based on the lease between the Crown and ICAO, nor on the obligations owed by the Crown to ICAO or its employees because of the lease.  Instead, the respondent’s claim against the Crown is based on an alleged preexisting knowledge of toxic substances in the building and its failure to warn those who used the building of the existence of these substances.

44                               Finally, the respondent alleges that he was injured, in part, after his employment with ICAO was terminated, when he returned to the ICAO building for an appeal hearing; this is meant to further establish that his injuries do not arise from employment.

45                               Mailhot J.A., in dissent, held that the damages requested by Miller were, in essence, employee benefits, because they included medical costs, retraining, loss of future earnings and loss of future pension.  These damages are like any damage claims in personal injury lawsuits.  If the respondent was hit by a car and no longer able to work in his present employment, his claim would be no different.  As such, he is not claiming “employee benefits”.

(ii)  The Extent of the Immunity

46                               Although the Crown states that it is not arguing that the ICAO immunity is transferred to the Crown, in essence it is arguing that the immunity of the organization extends to the location of work and, because the respondent’s injuries were incurred therein, all those who may be responsible for the alleged damages are protected by such immunity.

47                               In stating that the nature of the actions giving rise to the claim determine if they are “sovereign” actions, the Crown is in fact saying that anything occurring at the place of employment, where that location results from an international agreement between an international organization and the Crown, is a sovereign act and, therefore, that no matter how remote, this act is protected by the immunity.  This is incorrect.  The immunity of ICAO and its employees is for the protection of the Organization.  This is clearly stated in art. 21 of the Headquarters Agreement.  One must not simply look at the activities involved and the place in which these occurred, but also at the effect that these claims may have on the Organization.  Therefore, the actual parties to any court action are important and must be considered, as well as the nature of the claim.

48                               A sovereign act is an act done by a sovereign body acting in accordance with its sovereign privileges.  The signing of the international agreements were sovereign acts of both the Crown and ICAO.  The respondent argues that ICAO had absolutely no control over maintenance of the leased premises and that it had no control over its ventilation system.  He states that it was only upon ICAO’s request that a Joint Working Group was formed, including representatives of the Crown and Monit, to resolve the problems related to poor air quality.  His claim against the Crown is for a failure to warn of dangerous environmental conditions within the ICAO headquarters.  The respondent’s burden is to show that the Crown was aware of the problem and failed in its duty to warn the occupants of the building and that this caused the injuries that he allegedly incurred.  This failure to warn, if proven, cannot be seen as a “sovereign act” as it clearly has nothing to do with the agreement between ICAO and the Crown, nor with ICAO’s daily activities.  Furthermore, although the Crown alleged that its representatives were not permitted to enter the building, there is evidence that ICAO was only one lessee of that building, that people regularly entered the building and that, although the actual ICAO premises could not be entered without permission, due to the air problems, the Crown was given permission to enter on numerous occasions.

49                               According to the appellant, if the Superior Court exercises jurisdiction with respect to the respondent’s claim, ultimately it will have to comment upon and, thus, interfere with the internal workings of ICAO.  As a result, a national court will scrutinize and render judgment on a dispute essentially related to ICAO labour relations, which falls within ICAO’s complete and exclusive jurisdiction.  The appellant argues that such a result would run counter to basic public international law principles, as it would fail to recognize the dignity, independence and integrity that necessarily attach to foreign and international organizations and states.  In this regard, the Crown cites this Court’s decision in Re Canada Labour Code, [1992] 2 S.C.R. 50, where La Forest J., writing for the majority, stated at p. 80:

While bare employment contracts are primarily commercial in nature, the management and operation of a military base is undoubtedly a sovereign activity.  The operations of embassies and offshore military posts are the quintessential examples of state activity that should be immune from foreign review.  [Emphasis added.]

50                               First, this decision involved the State Immunity Act  which does not apply in the present case.  This notwithstanding, if ICAO was a party to this action or if there was an investigation into the activities of ICAO, its usage of the building, or the way it paid or treated its employees, this argument might be persuasive.  Clearly, there will be some instances where dealing with events that occur during someone’s employment may lead to intrusion into sovereign activities of an international body.  The present case, however, is not one of them.  As stated throughout, Miller’s claim does not emerge from his employment relation with ICAO.  Thus, the Organization’s administrative procedures are inapplicable in this case.  The Superior Court is only being asked to determine if the Crown had knowledge of the environmental conditions in the building, if it or its representatives failed to exercise their duty to warn those who worked within it, and if this caused the respondent’s damages.  Within this analysis, a consideration of ICAO’s internal functions and procedures is neither relevant nor necessary.

C.  Full Answer and Defence

51                               It is argued that, because of the immunity that protects ICAO and its employees, the appellant will face difficulties in preparing a full answer and defence should this action be remitted to the Superior Court.  This is said to be due in part to the inviolable nature of the headquarters itself, which is provided by arts. 4 and 5 of the Headquarters Agreement.  Concern is also expressed by the appellant that ICAO cannot be compelled by the court to provide documents and that its employees cannot be compelled to testify.

52                               Although ICAO immunity covers the premises with an “inviolable” character, the facts of this case indicate that this immunity is not so broad as to completely preclude the appellant from gathering evidence to support its arguments on the merits of this case.  As noted earlier, there is evidence that the Crown entered the ICAO premises on numerous occasions due to the continuing air quality problems.  This evidence also suggests that the Crown supplied full-time staff to assist and advise Monit, the owner of the building, and that the Crown participated in committee meetings.  Finally, it suggests that ICAO was not the only tenant of the building, which was open to the public from the street and the Metro.

53                               In addition, it must be noted that art. VII of the Supplementary Agreement states that any cause of action related to the lease can be brought to a competent court of Canada and, in such a case, ICAO should “facilitate the proper administration of justice and assist the Government of Canada by providing all relevant evidence”.  Although the respondent’s claim is not based on the lease but rather on the Crown’s failure to warn of environmental problems, the Crown could point to the fact that its involvement in this case is “related” to the lease to obtain the cooperation of ICAO.

54                               The Crown may also be able to invoke art. 21 of the Headquarters Agreement.  This Article discusses the immunity and privileges of international officials.  Although the Vienna Convention on Diplomatic Relations, Can. T.S. 1966 No. 29, states that these officials generally cannot be compelled to testify, art. 21 provides that:

The Secretary General of the Organization shall have the right and the duty to waive the immunity of any official in any case where, in his opinion, the immunity would impede the course of justice and can be waived without prejudice to the interests of the Organization.  [Emphasis added.]

In light of the above, the concerns raised by the Crown regarding the effect of ICAO’s immunity on the preparation of its defence are both hypothetical and premature.  Any real issue on this subject could be handled by the trial judge.

D.  The Proper Forum

55                               Having found that the context in which the alleged injuries occurred does not prevent the respondent’s action, this Court must now determine if, under Canadian law, the Quebec Superior Court has general jurisdiction over these matters.

56                               The Crown does not claim that there is anything in Canadian law which preempts the jurisdiction of the Superior Court; however, it does rely on international law, in particular the Headquarters Agreement.  It argues that our internal order is affected by international law and that, as such, the jurisdiction of the ordinary courts of Canada is ousted by Canada’s acceptance that there will be an exclusive international forum for disputes resulting from the relationship between employees and their international employer.  Upon review of the wording of these international instruments, I find that there is nothing stated therein to preclude the respondent’s action from being heard and considered by the Quebec Superior Court.  The Crown argues that silence with respect to the Crown’s obligations towards ICAO employees indicates that the respondent’s claim does not exist in international law; the respondent submits that this silence “confirms only that there are no limitations on the jurisdiction of the domestic courts over such claims” (emphasis in original).  I agree.  The international order as stated in these instruments only relates to actions in which ICAO is a party.

57                               Turning to the internal law of Canada, art. 31 of the Code of Civil Procedure of Quebec states that the Superior Court is the court of first instance for all suits that are not assigned exclusively to another court by a specific provision of law.  The international documents that must be considered include the Headquarters Agreement, the Supplementary Agreement, the ICAO Staff Rules, and the ICAO Service Code.  Whether or not all of these documents form part of Canadian law is, in this case, irrelevant since there is nothing in any of these documents to specifically exclude an employee of ICAO from bringing an action against the Canadian government in Canadian courts and, as such, the Superior Court is competent to hear the claim.

VI.  Disposition

58                               The appeal having been dismissed from the bench, this case must be returned to the Quebec Superior Court for consideration on the merits.  Costs are awarded to the respondent on a party and party basis.

Appeal dismissed with costs.

Solicitor for the appellant:  The Attorney General of Canada, Montréal.

Solicitors for the respondent:  Seal Seidman, Montréal.